Book Review

The biologist Garrett Hardin was purportedly a friend of the commons. But he seems to have had little room in his heart for the commoners themselves. In his now classic essay, "The Tragedy of the Commons," written thirty years ago, Hardin spelled out the relentless economic process whereby an unowned common resource-a pasture or fishery, for example—is constantly put upon and exploited by those with no disincentive to limit such activity. The result, he claimed, would be inevitable ecological ruination. What he was less concerned with was the corresponding tragedy that results when common property is privatized in the name of capitalist rationality, a shift that more often than not spells ruin for the common people, who are now deprived of access to an aspect of the natural world that once helped to sustain them.	1
In Oyster Wars and the Public Trust, Bonnie J. McCay, a self-described "neocommunitarian," provides yet more ammunition for those seeking to show—Hardin aside—how communal systems for sharing resources can, in fact, serve a positive distributional and ecological function. Examining the conflicts that emerged over oyster beds in the nineteenth and twentieth centuries, McCay explores some of the factors that help explain how the oyster grounds managed to escape, at least in part, many of the imperatives of the economic culture of capitalism. The conflicts she discusses emerged in the nineteenth century with the development of oyster planting, that is, the human intervention in the growth and cultivation of the shellfish. As oyster planters practiced their trade, they sought to get the law to uphold their rights to private property in the oyster beds. This tactic put them at odds with those inured to the customary common property regime that governed those areas where oysters were found naturally.	2
McCay's approach is thoroughly interdisciplinary, blending history, ecology, law, and anthropology. At one level she is concerned with evolving legal doctrine as articulated in court cases. But she complements this approach with a social anthropological concern with the events, context, and people behind the legal disputes in question. In short, she seeks to engage in a kind of social history of the law. Her goal is to help reveal not simply the shifts in legal discourse, but the historical forces responsible for these changes.	3
Ultimately, McCay concludes, open access to shellfisheries was not the main factor responsible for their overexploitation and eventual decline. Instead, she argues that mismanagement by government at the state and local level was at the root of the problem. Privatization of oyster beds did eventually take place, but not without a good deal of resistance raised on the part of the commoners themselves. Much of the resistance, in turn, centered on the interpretation of the public trust doctrine and she lays out for readers several differing understandings of this ambiguous concept. Three primary meanings stand out. First, an understanding of the doctrine as bound up with a concern for communal rights. Second, a concern with state ownership. And third, a concern with "public advocacy and environmental law" (p. xxxi). Unfortunately, because she does not offer a straightforward historical narrative—opting instead to tack back and forth across time—it is hard for readers to discern the outlines of doctrinal change here in anything but the broadest possible terms. Still, McCay argues in the end that for true social justice to occur, fishing rights need to be viewed not as privileges but as actual property rights.	4
There is indeed much to admire in McCay's sense of social justice and ecological vision. But her efforts founder on her inability to nail down one of her central points: that the tragedy of the oyster grounds was one felt mainly by the commoners themselves. She makes clear that her thinking about common resources and their use has been deeply influenced by the work of E. P. Thompson, who once noted that the commoners must be given credit for their common sense. McCay sets out to prove that privatization encroached on the rights of the poor to the oyster grounds. She attempts to show that resistance to privatization was a form of class warfare on the part of the commoners. Only she never really gives us a good sense of these common people. By the end of the book she finds herself defending her inability to offer a clear portrait of those who opposed the dominant view of how the oyster commons should be regulated. Noting that there is a "paucity of historical information about the fisher folk," she concludes that in general, "those who said 'no' to privatization were relatively poor people who depended on common property rights of access to marine resources to make a living" (195).	5
Admittedly, information on the lives of the so-called fisher folk is not as readily available as the published opinions in legal cases. But had McCay dug just a bit deeper and employed along with her impressive interdisciplinary arsenal a concern with social historical method (census, tax and probate records, for example) she might have been able to put some real flesh on the ordinary people who played such an important role in the story that she tells. She needed, in other words, to take another page out of Thompson's book. Had she explored the social background of the resisters, her claim that privatization of the oyster beds was a "tragedy of the commoners" might not have rung so hollow.	6
Ted Steinberg Case Western Reserve University

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